| The House's Special Powers: Money Bills
The main unique power is the requirement that bills for raising revenue must originate with the House. So in practice the Senate cannot initiate a tax increase. It is hard to see how this power amounts to much in practice. If the House doesn't support a tax increase, it simply doesn't have to pass one anyway. If the Senate could initiate them, would it really have changed much? It is a power that has little real world application. As anti-federalist #62 notes:
[...]for I consider the clause which gives the house of representatives the right of originating bills for raising a revenue as merely nominal, seeing the senate . . . [has the power] to propose or concur with amendments.
Anti-Federalist #64 goes further, decrying that the Senate would have any input into money bills at all:
And lastly, the right of altering or amending money-bills, is a high additional power given them as a branch of the legislature, which their analogous branch, in the English parliament, could never obtain because it has been guarded by the representatives of the people there, with the most strenuous solicitude as one of the vital principles of democratic liberty.
I realize Britain may not have been the most popular place in the world for the pre-America Americans having this debate back then, but the point is a good one. Britain in the late 1700s was already moving to gut the powers of their aristocrats in the legislature, and America explicitly chose to empower theirs.
If you read the relevant clause of Article I that spells this power out, you may be confused as to whether it limits the Senate in respect of just taxation bills, or also for originating spending bills. It turns out, the House and Senate disagree about this too, in a long standing dispute where the House interprets this clause as requiring both spending and taxation bills to originate with them. If the Senate starts a spending bill, the House refuses to consider it. I bring this up because it is an obscure tidbit, a little piece of trivia, which is indicative of how inconsequential this 233 year old fight between the House and Senate is, and consequentially, how insignificant this "power" is for the House.
Impeachment
The other arbitrarily usable unique power (as opposed to items like conduct of Presidential elections resolved by Congress) is impeachment. The structure of this process sets up the Senate as the "superior" body; the House becomes the prosecution, and the Senators sit as Judges. Who can the House impeach? Administration officials and Federal judges; the very people the Senate gets to confirm. Convicting someone they confirmed is a sort of admission of failure, a bit like firing your son from the company business. Per Wikipedia, only 18 officials have ever been impeached and only 7 were convicted. In 233 years of American history, have their really been only 7 (or even 18) people in Executive or Judicial office who did something worthy of losing their jobs? It's hard to put too much stock in this "power" and given the egregious abuses by Executive branch officials since Nixon, it's clear they don't either. An unused and nearly unusable power is hard to describe as having a lot of effect on day-to-day governing and negotiations between the branches.
One could assert that if the House impeached more often, the Senate would convict more often, but given the 2/3 requirement for conviction, this is hard to sustain. Much more likely is that the House doesn't bother as the conclusion is foregone. Newt Gingrich's experiment with a futile impeachment on Bill Clinton is the exception that proves the rule. He may have hoped the televised presentation of the case against Bill Clinton would be a kind of Saturday Night Massacre moment, electrifying the country against a corrupt President, and compelling Senate Democrats to vote for conviction. Instead, Clinton stayed popular, and even Joe Lieberman and the quisling caucus stayed on side. Gingrich was ruined. Granted, the case for removing Clinton from office was weak, but Gingrich's blow out is exactly the kind of thing other Speakers have wanted to avoid. Impeachment is saved for slam-dunks and even then, mostly only of bottom rung Federal judges, who constitute 14 of the 18 impeachments. Even so, the conviction rate is under 50% which wouldn't be good for a normal Prosecutor.
Both are Still Just Veto Powers
What is also noteworthy about these two powers unique to the House, is that they cannot be exercised without consent of the Senate. At best, they are a special kind of veto power, whose only power is the power to ensure nothing happens.
In fact, once the House has impeached someone, they will have increased the Senate's leverage with the Executive branch. This may indeed be how Andrew Johnson avoided conviction by just 1 vote, as was plausibly proposed at the time. As for Clinton, who can say if some of the Democrats who voted against conviction asked for some kind of quid pro quo? It's pretty easy to imagine that the White House was taking all their calls during that period.
Presidential Elections
Last, there is the House's power to pick the President should there not be an electoral college majority winner. This is such an infrequent event as to be of little practical effect. If there was a third party that regularly captured enough States to require the House to decide, this power would matter in policy terms, but otherwise, it is dormant. Even in exercising this power, the House doesn't vote democratically by simple majority, but votes State by State, where California's delegation has as much effect on the result as Wyoming's (just like the Senate). Liberals should probably be glad this power is rarely exercised, judging by the times it was used, the results probably wouldn't be good. Also, note that even here, in the special joint session of Congress that counts the Electoral College votes, it is the Senate President who presides, which is the only time this is the case for joint sittings.
The Senate's Special Powers: Executive Leverage
In contrast to the House's largely notional and rarely significant powers, the Senate's powers are regularly exercised and effective.
The primary entry here is the Confirmation power. This provides simply tremendous leverage against the Executive branch. It's more or less just a way of holding the Executive hostage in order to win whatever concessions the Senate wants. This is a key power lacking from the House, and a tremendous advantage to the Senate, even in battles with the House. As anti-Federalist #64 warned:
Their advice and consent being necessary to the appointment of all the great officers of state, both at home and abroad, will enable them to win over any opponents to their measures in the house of representatives, and give them the influence which, we see, accompanies this power in England; and which, from the nature of man, must follow it every where.
This may be why one of the few (only?) bits of spine shown by Harry Reid during the 110th Congress was his decision to never have the Senate actually recess, and instead stage pro-forma sessions with a single Senator during breaks. This was done to block Bush's abuse of recess appointments. In the past, I have praised this move, but in this light must ask: Why was the Senate willing to stand up to Bush on this, while not on so much else? Could it be that the ability to hold up low-profile nominations is a key Senate bargaining tactic in winning concessions from the Executive?
After confirmations is the Treaty power: In practice the 2/3 requirement has worked to limit the use of this power, but it is still another area of Senate leverage over the President. It also provides the Executive and Senate the chance to effectively legislate without involving the House. Formal treaties can in fact exceed the constitutional powers of what even formal legislation can do, see Missouri v. Holland (1920). The result is that the President and Senate could collude to effectively legislate (as treaties are "supreme law of the land") in places Congress itself could not.
Observe here how both these powers of the Senate are freely exercised without input from the House. The Senate can ratify a treaty or confirm a nominee no matter what the House might think. Now the power of holding impeachment trials requires the House to act, but the Senate's ability to withhold confirmation on Executive nominees can often be used to the same effect. "This person must quit or no one else will be confirmed" is usually effective enough at getting the message across. It's certainly more effective than anything in the House's arsenal for fighting Congressional/Executive power struggles, short of full scale refusal to pass a budget, which again Newt Gingrich tried to his party's dismay in the infamous 1995 budget fight.
That one warrants more comment. During the Iraq war funding debate of early 2007, some liberals (myself included) wished for Nancy Pelosi to simply not fund the Iraq war. However much one detests the Iraq war, and feels Pelosi should have done so, with Gingrich's downfall in mind, it is easy to see how badly that could have turned out for Pelosi and the Democrats given the very blunt nature of this instrument. The Senate can refuse to confirm a couple nominees, or delay this or that treaty (or add reservations). They don't have to resort to all-or-nothing high stakes gambles to get their way with the Executive. The House's sole leverage is tremendously risky and it doesn't surprise me that only a near-psychopath like Newt Gingrich would even attempt it. After Bush vetoed the withdrawal-mandating initial funding bill the Democrats did pass, the public was more likely to blame Congress than the President for the delay in passing the funding bill. Putting aside the moral question of the Iraq war, politically this was shaping up to be a big loser for Pelosi, much like it was for Gingrich. We often fixate on the weak officials in high office, but don't ignore that much of that weakness is actually institutional in nature. Gingrich was as strong a Speaker as you can imagine, willing to exploit every tool in his arsenal to depose Bill Clinton, and he broke apart on the rocks despite governing in a moment of conservative ascendancy and near total media dominance. He fought a weakened President and lost.
All of these objections were known to the founders, and in Federalist #66, New York Post founder Alexander Hamilton replied:
A SECOND objection to the Senate, as a court of impeachments, is, that it contributes to an undue accumulation of power in that body, tending to give to the government a countenance too aristocratic. The Senate, it is observed, is to have concurrent authority with the Executive in the formation of treaties and in the appointment to offices: if, say the objectors, to these prerogatives is added that of deciding in all cases of impeachment, it will give a decided predominancy to senatorial influence. To an objection so little precise in itself, it is not easy to find a very precise answer. Where is the measure or criterion to which we can appeal, for determining what will give the Senate too much, too little, or barely the proper degree of influence? Will it not be more safe, as well as more simple, to dismiss such vague and uncertain calculations, to examine each power by itself, and to decide, on general principles, where it may be deposited with most advantage and least inconvenience?
This is plainly sophistry. The objections are precise. Too much power is given to the Senate with no comparable authority in the House. Then to resort to a sort of "well how can we measure this?" squishy dodge is absurd. Power is a zero-sum game. Compare the Senate to the House, and find a mechanism for preventing exactly the sort of drift that the critics at the time predicted. One can imagine any number of remedies. The aristocratic inklings of the Founders had won out here, and the Senate was deliberately given all the best plums. Hamilton trips up because in Federalist #52, discussing the House's two year election cycle either he or Madison said:
...the greater the power is, the shorter ought to be its duration; and, conversely, the smaller the power, the more safely may its duration be protracted.
Indeed. One hopes Hamilton did not write #52 and simply failed to read it. By the Federalists' own reasoning, the Senate should be on single year terms.
In the finale, part III, we'll go beyond this to the secondary effects that this disparity has caused or contributed to. |
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